Public Authorities Revision Notes

A. Introduction

A narrower duty of care should be owed because the activity they carry out is for the benefit of the community as a whole it’s not selfish or profit motivated.

The source of funding for any damages will be the public purse, concerns raised about paying any individual with the public’s money in this way.

Concern about the separation of powers- idea that the courts, parliament and executive are independent of the way the British constitution works. If Parliament has created a public body and given it certain funds, that body has to be free to carry out its duties and it’s improper for the courts to intervene or dictate the way in which the body carries out its duties.

Reasons are controversial, why should it matter who injured C? These arguments haven’t resulted in public bodies being immune to liability.

B. Public law issues

There are other ways of accountability/ policing of public bodies e.g. applications for judicial review or through political process such as ballot box or report to Parliament.

Overtime English law has developed a number of mechanisms to deal with these issues but has yet to properly rationalise their application and interrelationship. The most important ideas in the case law are the concepts of:

Vires

Discretion

A policy (planning), versus operational sphere of a public body

Justiciability

Irrationality (Wednesbury unreasonableness)

Justiciability

Crown Proceedings Act 1947 s2

Historically the king could do no wrong and this was the case in tort until 1947, the king couldn’t be subjected to a court he had created. Individual crown servants could be sued however- this act permitted the crown to be sued as if it were an ordinary private D.

Concerns against this:

Courts don’t feel adequate adjudicating over such matters

Public authorities have deep pockets, however their money is from the public funds- concern of depletion of public funds

Political issue- only fit for parliament to consider whether or not it’s appropriate to legislate on, and it’s not the courts job.

Might distract public bodies away from their main duties and waste resources in fighting legal battles instead of improving their area of local governance.

Home Office v Dorset Yacht 1970

What would’ve happened in this case if it had been held that it was negligent to allow the young offenders to be released into society with minimal supervisions= forced the courts to weigh up advantages of whether or not to rehabilitate young offenders in such a way or protecting the public.

Lord Diplock: this is the exact kind of question the courts shouldn’t be dragged into- politics is a big no no.

Ultra Vires

He also tried to suggest that an ultra vires test should be used to test whether there is liability. However this suggestion went too far and has since been criticized (see X v Bedfordshire). The test doesn’t take into account the elements of foreseeability, proximity, fairness, justice and reasonableness which are necessary to give rise to a duty of care.

Controversial suggestion for a test because he’s trying to use public law test in tort. Public law concepts should be used for helping negligence but after Barret– didn’t generally matter. Still one situation where the law will insist that the public authority acted outside its power (Stovin v wise, and Gorringe)

Discretion

Ask whether the conduct in question fell within the ambit of a discretion conferred on the D by Parliament.

Lord Reed in Dorset Yacht: sometimes in conferring powers there may be errors of judgement in exercising the discretion awarded by Parliament, Parliament can’t have intended that members of the public should be entitled to sue in respect of such errors. But if the discretion is exercised carelessly or unreasonably.

In Dorset Yacht: the matter was a valid exercise of their discretion= no liability

Discretion can’t be looked at in all or nothing terms- used as a simple criterion for the imposition of a duty of care.

Lord Slynn in Barret v London: “Even knocking a nail into a piece of wood involves the exercise of some choice or discretion and yet there may be a duty of care in the way that it’s done. Whether there is an element of discretion to do the act is thus not a complete test leading to the result that, if there is, a claim against an authority for what it actually does or fails to do must necessarily be ruled out.” Basically saying just because some element of discretion exists doesn’t automatically mean/preclude the imposition of a duty of care.

Illustrations of justiciability; suggestion of ultra vires test to define public authority’s liability.

Smith v MOD 2013 (Lord Mance)

Facts: several families of servicemen killed in Iraq claiming.

Lord Mance: dissented on the grounds that there were no separate grounds of combat immunity.

In this kind of case the court can’t sensibly adjudicate on whether or not there’s been negligence as the decisions about how to equip the military forces are decided on many factors e.g. budgeting etc. these are the kinds of issues the courts can’t get involved with when reviewing a case.

Also says, the court would be required to determine that those particular measures would’ve made a difference, is the court supposed to say that if proper equipment had been provided then there would’ve been victory or no deaths etc.

Concerned that courts shouldn’t find themselves dragged into this when deciding how or whether negligence should be found.

The concerns about getting dragged into difficult, inappropriate questions has given rise to the concept of justiciability– there are certain types of activities which aren’t appropriate for the court to adjudicate over.

a) Three ways of conceptualizing justiciability

Connor v Surrey County Council 2011

Laws LJ identifies three strands:

Pragmatic approach to justiciability

Political strand: there are some issues best left to parliament, especially questions of weighing up competing social interests.

Constitutional strand: a question that raised the matter of separation of powers. The idea that if Parliament had decided to confer power on a public authority, it really ought to be up to that authority to be left to decide how to do its job. If the courts start imposing duties and liabilities, that could be seen as undermining Parliament’s decision in conferring that power.

Laws’ speech- the best and first attempt to elucidate/ explain justiciability, because the explanations for it aren’t clear or easy to understand, but his exposition is the best.

Policy matters less likely to give rise to duty of care. No neat dichotomy between matter of policy and operational matters. The less policy there is the more likely that a duty of care will arise and vice versa.

Lord Browne-Wilkinson: set out actions which could be taken against a public body: common law negligence, breach of statutory duty, misfeasance in public office, breach of EU law, violating public body duties under HRA 1998.

Co-existence of statutory duty and common law duty of care

Difference between the manner in which a statutory duty discretion is exercised VS the manner in which the statutory duty has been implemented in practice.

g. in the educational field a decision whether or not to exercise statutory duty to close a school is a decision which involves discretion VS the actual running of the school pursuant to statutory duties.

Distinction between the two is that: A- taking care in exercising statutory discretion whether or not to do an act VS having decided to do that act, taking care in the manner in which you do it.

Discretion: show that the decision was outside the ambit of discretion altogether, if not, a local authority can’t itself be in breach of a duty of care since they’re within their powers conferred by Parliament. Difficulty for courts comes in deciding whether or not it’s a policy matter because if it is= beyond their ambit.

Justiciability and the policy/operational dichotomy

Common law duty of care in relation to taking of decisions involving policy matters can’t exist. Nothing done within ambit of authority can give rise to duty of care.

If justiciable, the ordinary principles of negligence apply.

If the C’s complaint alleges carelessness and NOT the taking of a discretionary decision to do some act, but in the MANNER in which the act is PERFORMED (e.g. running of a school), the question whether or not there’s a common law duty of care falls to be applied by the usual principles laid down in Caparo v Dickman

Reconsider Lord Browne Wilkinson in light of Stovin v Wise.

Barret v Enfield London Borough Council 2001.

Developed the test in X further and said the discretion in that case was misplaced. It’s impossible for a duty of care to arise within a case which was at the discretion of the local authority. Two important factors:

Whether particular activity involved the weighing up of competing social interests

Whether it could be seen to have been the intention of Parliament that the courts shouldn’t substitute their own view for the decision that the local authority had taken.

Important to look at statutory framework- imposing a duty of care has to be consistent with what the statute says.

Phelps v Hillingdon BC 2000

Facts: four children with learning difficulties sued their local education authorities for negligently failing to assess or to provide support for their disabilities.

Held: Lord Slynn held that ‘persons exercising a particular skill or profession may owe a duty of care in the performance to people who it can be foreseen will be injured if due skill and care are not exercised . . . A doctor, an accountant and an engineer are plainly such a person. So in my view is an educational psychologist or psychiatrist and a teacher’.

The case limits the effect of X v Bedfordshireby extending public authorities’ vicarious liability for negligence of professionals who advise them.

Carty v Croydon 2005

Rejects the discretion test; scepticism about the value of the policy/ operational distinction

CoA decision that doesn’t alter the tests, but makes it very clear that discretion is no longer an important factor for setting out justiciability, and sets out tests with clarity. Focus on this case for a good grounding on the current state of justiciability.

A duty of care might be owed towards a child where an education officer, in the performance of his statutory functions, entered into relationships with, or assumed responsibilities towards that child.

C) Are public law concept relevant?

Stovin v Wise

Dicta that the C must show irrationality where duty based on a failure to exercise statutory power

Case where lord Hoffman explains why there is no liability for failure to act.

Facts: road traffic accident between car and bike, collision came about because 1st D trying to pull out of a junction, whose view was obscured by mounds of earth owned by a landowner. Biker sued driver and local authority, local authority had statutory powers to remove obstructions and the local authority hadn’t exercised those powers.

HoL: no duty of care owed in this situation. Generally no duty of care owed to take positive actions. The fact that a local authority had statutory power didn’t mean they owed a duty of care where a private body with no statutory power had acted in a negligent manner.

Lord Hoffman: in a situation where this was allowed it would be for the C to show it was irrational for the authority to fail to act. Irrationality is a public law concept- saying there’s a place for public law in a situation like this to help determine whether a public body owed a duty of care.

Lord Nicholls: dissented and advocated an open ended approach to decisions- ‘the exclusionary approach presupposes an identifiable boundary between policy and other decisions corresponding to a perceived impossibility for the court to handle policy issues. BUT the boundary is elusive because the distinction is artificial and an area of blanket immunity seems undesirable and unnecessary.

It is undesirable in principle that in respect of certain types of decisions the possibility off a concurrent common law duty should be absolutely barred whatever the circumstances.

Irrationality is just another name for Wednesbury unreasonableness. Lord Browne-Wilkinson in X- applied his test to the actual conduct of the D vs Lord Hoffman in Stovin applied his to the conduct that the C alleged the D ought to have engaged in(is this failure irrational?)

Gorringe v Calderdale Metropolitan Borough Council 2004

Some caution about the dicta in Stovin.

Facts: road accident involving obscure visibility over the crest of a hill- alleged that local authority had been negligent in failing to make paint markings on the road in order to warn drivers that they needed to slow down. HoL relied on Stovin to say there was no duty of care.

Doubts expressed about Lord Hoffman’s dicta about irrationality being needed- his dictum wasn’t approved, Hoffman says it may have been wrong to speculate it in the first place.

Lord Roger reaffirmed the importance of public concepts in imposing liability for negligence on public authorities. Where the duty arises as a result of a failure to exercise statutory power= still element of irrationality.

IF A CLAIM OVERCOMES THE HURDLE OF JUSTICIABILITY THEN IT MUST BE SUBJECTED TO THE ORDINARY DUTY OF CARE PRINCIPLES SET OUT IN CAPARO V DICKMAN.

This may be termed the private law dimension of a claim against the public body.

C. Applying the Caparo Test to Public Authorities

Caparo= basic test for duty

Was the damage to the C reasonably foreseeable

Was the relationship between the C and D sufficiently proximate

Is it just and reasonable to impose a duty of care

Stovin v Wise- vital importance of statutory context

X(minors) v Bedfordshire County Council 1995

Not fair, just and reasonable to impose liability for negligent conduct of child abuse investigations.

Concerned several cases heard at the same time that involved various aspects of local authority services for children. Two main categories- social services arguing children not being looked after and education cases which were about that the educational provision made for children hadn’t been adequate.

M v Newham

C was a child complaining that they’d been removed from mum as a result of social services department. This removal had taken place as a result of psychiatrist- who had interviewed the child and the child had said that she was being sexually abused by a man who had the same name as her mom’s boyfriend- it turned out however the local authority had misidentified who the abuser was – it was actually a close cousin who happened to have the same name. the negligence claim was rejected because it failed to satisfy the fair, just and reasonable element of the three stage Caparo test

HoL several reasons why the third stage had failed

Delicate task for council to decide whether to take child into care or not

Imposition of liability on the authority in these circumstances would have detrimental impact on way authority carried out its functions- council authorities might become overly cautious.

Many agencies involved in making the decision to remove the child. It would be unfair to impose liability on only one of those authorities

If a duty of care is recognised here it could lead to a lot of cases being brought and local services limited resources would be diverted from doing good but instead fighting legal battles.

Barret v Enfield 2001

Fair just and reasonable to impose liability for decisions as to child’s future, once he had been taken into care.

The facts slightly different to the above cases. Boy taken into care from an early age alleged authority had been negligent in failing to have him adopted by a family. If he had been adopted rather than growing up in local authority care he would’ve done better in life. HoL held- the fair just and reasonable test was satisfied, a duty of care was owed here.

Distinguished the analysis used in M v Newham- the task wasn’t about taking a child away from parents- it wasn’t as delicate. Secondly there were no multi agent decision services. Finally the risk of local authorities changing the way they carry out their duties shouldn’t be given too much weight in this case.

Difference in outcome between Barrett and X could be argued to be the factual distinction between the two- the alleged negligence in Barrett was in the treatment of the C while IN care, whereas X was in the decision whether to take the C’s into care or not.- whether this really warranted the difference in result is open to question.

In Phelps and W v Essex County Council- HoL exhibited a rather sceptical attitude towards the policy arguments that had prevailed in X v Bedfordshire.

W v Essex County Council 2001

Shortly after Barret- HoL declined to strike out claims against a local authority in respect of its child welfare responsibilities.

Couple signed up to be full time specialist adolescent foster carers- on the express provisions that whoever the council chose to pair them with musn’t be a sexual offender as they couple had young children of their own. The couple were given a 15 year old boy G- who systematically physically and sexually abused the couple’s children. The children sued the local authority in respect of the assaults and psychiatric damage suffered and the parents in respect of post traumatic shock on learning about what had happened. They alleged the council knew or had reasonable belief G was an active sexual abuser, who had previously been cautioned for abusing his own sister sexually, and that the council worker had deliberately lied to the couple when specifically asked whether or not G was a sexual abuser.

Their lordships made no attempt to reconcile this case with their earlier decisions in X v Bedfordshire apparently viewing the two cases as self-evidently distinguishable

Phelps v Hillingdon 2000

Assumption of responsibility by psychologist employed by authority to child in respect of assessing child for dyslexia.

Whenever there’s a multi-agency decision making process that shouldn’t be a problem- you should simply pin liability on the people who were negligent.

The basic questions of law were whether a LEA could be held directly or vicariously liable to a pupil whose special educational needs it failed to identify or address through the provision of special schooling, OR whose needs it misidentified in consequence of which the pupil was required to attend a special school.

HoL ruled– for similar reasons applied in the abuse cases it wouldn’t be fair, just or reasonable to impose a duty of care simply because of their statutory duties in this area.

Local educational authorities would escape liability even if they were grossly delinquent. But their lordships accepted that a LEA might assume a duty of care by its provision of a specialist advisory service by people who hold themselves out as having special skills.

HoL ruled- an educational psychologist called to asses a pupil and advise on their needs in circumstances where it was clear that parents and teachers would follow the advice, owed the child a duty of care for whose breach the D lea would be vicariously liable.

As a result of the decisions in the above cases. HoL seen to be moving away from decision they’d taken in X and Bedforshire

*D v East Berkshire Community Health NHS Trust 2004

Very important recent case. Read the Court of Appeal’s analysis of the claim by the child (which was not appealed to the House of Lords), and the House of Lords’ analysis for the claim by the parents.

CoA and HoL decided there should be a duty of care in exactly the same circumstances in which a duty had been denied in M v Newham

C’s child and the parents. Child taken to hospital and when they were there, the local authority staff had formed the view that the child had been the victim of sexual abuse by the parents as a result of injuries= child removed from her parents care and placed in local authority care= transpired that the injuries had been caused by falling off a bicycle. Unfortunately child formed psychiatric illness as a result of the terrible conditions and the parents as a result of being wrongly accused.

CoA – child’s claim succeeded- the factors that had been given in Bedfordshire were no longer sufficient to be justified for denying duty of care. Concerns expressed in M v Newham- those reasons no longer worked under HRA 1998a public authority already owes duties to people whose HR are affected. E.g. if a local authority removes a child from parents, that’s an interference of right to family life. Or Article 3 right not to suffer degrading inhuman treatment if they fail to remove an abused child. Local authority has to take positive steps to prevent abuse.

Concerns in X no longer relevant because there might be a claim under HR

As a result the child’s claim had to be allowed

Parents appealed to HoL – they don’t have a claim in negligence as they aren’t owed a duty of care by the medical peeps concerned

Lord Nichols- explained that the way he saw this case- liability could only arise if there was maliciousness involved. You need some extra justification why the law of negligence should make damages available where there was no malice. In his view no justification to extend principle where there was no malice involved. Medical practitioners shouldn’t be worried about carrying out their duties.

Lord Roger- para 100+106

When applying Caparo test remember that wrongs should be righted- he saw this as a vacuous assertion. The point is you have to ask, has there been a wrong here

Para 106= addressed argument put to HoL- the reason why parents should be allowed to claim, they aren’t asking for anything more of the doctor than the child. He pointed out this submission misunderstood the nature of duty of care for negligence.

You always have to apply the duty to the person who was owed you can’t piggy back on someone else’s duty.

Duty of care can only be owed to particular individuals. Position of the children v the position of the parents

Was HoL moving away from blanket exclusions of duty of care for public services following Phelps? D v East Berkshire questions this.

Case involved three cases where child welfare professionals had made unfounded allegations of abuse against one or both parents. East Berkshire- mother accused of suffering Munchausen Syndrome, Dewsbury case- girl had an undiagnosed medical condition which made her bruise, Oldham case- he baby had brittle bones but this had been undiagnosed.

The decision in X v Bedfordshire can’t survive the HRA 1998

Para 84- it follows that it will no longer be legitimate to rule that as a matter of law, no common law duty of care is owed to a child in relation to the investigations of suspected child abuse and the initiation and pursuit of care proceedings. It is possible that there will be factual situations where it isn’t just fair or reasonable to impose a duty of care, but each case will fall to be determined by the individual facts.

The main issue at the HoL stage= parent’s appeal against CoA decision that welfare professionals owed them no duty of care as well.

Lord Nicholls– there is a conflict of interest– the doctor’s patient is the child not the parent in these types of cases- they have a greater interest in owing the child a duty of care- they’re vulnerable members of society and usually unable to speak out – interests of child and parent at the point of suspicion by a professional are diametrically opposed- child trumps parents in that case.

Obviously acting recklessly isn’t acting in good faith

Social workers and medical workers shouldn’t hesitate in that situation. Where you have a conflict the child’s interest have to prevail.

Jain v Trent Strategic Health Authority 2009

C owned and operated a nursing home. Local authority decided to close down the care home as they deemed it wasn’t being run properly, the care home was closed. Turned out the local authority was mistaken in thinking that the care home wasn’t being run properly, but the home’s reputation had been so badly damaged that the business failed. The claim in negligence made was rejected for exactly the same reasons the parents in x were rejected a claim.

The local authority must be free in pursuit of exercising their duty for the people they’re meant to benefit. People seeking to assert a claim- have to be those intended by the statutory scheme- look at statute to see if duty of care is consistent.

Would’ve been bad if residents had instead said the care home wasn’t being run properly and they local authority hadn’t done anything- local authority would’ve owed duty of care there.

D. Reform

Concerned with not just negligence liability of public authorities but with the legal means a citizen could obtain redress for what they call clearly substandard administrative action

The law of negligence is just one of those four mechanisms- the other three mechanisms most of the time ought to be sufficient to deal with lack of action by public authority. V dissatisfied with the state of the law and proposed instead of orthodox negligence analysis- where you had a truly public activity and there was an intention to confer a particular benefit on the C as a result of that truly public activity and there was serious fault on the part of the public authority that there should then be liability for negligence.

Show serious fault on part of D

How senior were the people involved

Trying to bring in a test that’s used very differently in EU law

Academic criticism of this suggestion- it hadn’t been costed properly- any proposal that needs more public money= not likely to be supported. Not clear what law will be in the future.

But proposal is useful about how public liability should work-

The law commission wasn’t really convinced that liability for public authority belonged in tort law but public law instead.

*The extent to which tort law ought, should, could borrow elements from other areas of law.

In this consultation paper, Law Commission is not just concerned with liability of public bodies, they are concerned with the legal means a citizen could obtain redress for what they call clearly substandard administrative action

You need to see liability of public authorities not in terms of law of tort and negligence – you need to see it in one of the four ways in which people could obtain redress for administrative failure: the other 3 are external mechanisms such as public inquiries. Law of negligence is just one of the 4 mechanisms – often the other 3 mechanisms are more than sufficient to deal with SAA; there was however still a need for courts. Ombudsmen are a voice for the citizens and can require reforms

Commission wasn’t proposing to abolish law of tort but were dissatisfied with the current status of the law

Where you have truly public activity and there was an intention to confer a particular benefit on the claimant as a result of that activity and there was serious fault on the part of the public authority that there should then be liability for negligence – instead of duty of care test – we should look at this test instead (3 key elements to this proposal)

1. Truly public activity was something that was unique to government such as duty to build hospitals and similarly prerogative powers such as power to issue passports

2. Conferral of benefit – you need to look at whether the statutory scheme was meant to confer a benefit of the kind that the claimant is complaining of not having received @1:03:00

3. Serious fault on part of defendant – By serious fault Commission meant to impose higher standard of fault than current breach of duty (reasonable person act in same way defendant acted) and so you need to look at actual knowledge of public body in its actions. You need to look at the extent to which it departed from its practice and also how senior the people involved were in the alleged carelessness – the more senior they are the more likely they are at fault. Commission describes this as drawing from a test from EU law.

This proposal was very controversial with lots of academic criticisms but it hadn’t been costed properly – in fact there would have been greater public authority liability than previously

Law Commission, Administrative Redress: Public Bodies and the Citizen Law Com No 322 (2010), paras 3.28-3.58, 6.8-6.9

In 2010 the proposal had been put on ice because it was made clear to Commission any reform to increase the public expenditure would not go

Thus, what will happen in the future isn’t really clear

The proposal is very clear first of all on a mundane level a topic of discussion for our essays. It is also useful however to provide us with insight on public authorities and negligence.

Lastly, Law Commission really wasn’t convinced negligence of public authority belonged with tort but rather as a subsidiary of public law

Interesting question to think about is extent of tort which law of tort should borrow concepts from Public law to harmonize the two concepts